Charging for residential care Under the Care Act 2014

Transcription

1 Charging for residential care Under the Care Act 2014 If you need residential care, your local authority may ask you to pay towards the cost. This factsheet looks at the rules the local authority have on charging for residential accommodation. This factsheet is an overview because the rules are complicated. The local authority has to charge you for residential care services if you can afford to pay. They should not charge you for residential care services if you get free aftercare under section 117 of the Mental Health Act If you are not happy about how much the local authority are charging, you can ask for a review or complain. This factsheet covers: 1. What is residential care? 2. Will I have to pay for residential care? 3. The Mental Health Act and section 117 aftercare services 4. What if I cannot afford the charges? 1. What is residential care? If you have a mental illness you may find it hard to live in your own home even with help or support. You may need to stay in residential care accommodation. This type of accommodation is may be called a care home. You can get care all day and night if you are in a care home. There are different types of care homes to support different needs. The care home you live in may depend on things such as your age or your need. Top 1

2 The rules in this factsheet are not for supported housing. How you pay for supported housing is different. You can find more information in our Supported Housing factsheet. You can download this for free from or call and ask for a copy to be sent to you. 2. Will I have to pay for residential care? This section covers: What is capital and how will the local authority assess this? What is income and how will the local authority assess this? What is the most I will have to pay? What are top-up fees? What are Deferred Payment Arrangements (DPA) If your local authority decides you need residential care, they may charge you if you are able to pay for these services. 1 The local authority will do a financial assessment. This is also known as a means-test assessment. This will work out how much you will have to pay towards the cost of the care home. They will assess you as an individual. This means they won t take your partner s income into account. 2 You will need to give the local authority information about the money that you have. The local authority may use different rules if you go into the accommodation for a short time. 3 What is capital and how will the local authority assess this? Top Capital can include buildings, land, premium bonds, shares and savings that you own. 4 You may own a property with someone else. Unless this is land the local authority treat you as owning half of it even if you did not pay that much towards it. This will change if there is evidence that you don t own half. 5 The rules on what counts as capital and what doesn t can be complicated. Some capital can always be left out 6 or left out for periods of time depending on the circumstances. 7 Your main home will not count as capital if you need to stay in a residential care home for a temporary period. You might need to move to residential care permanently. If you do the value of your former home will be considered as capital. And taken into consideration for part of the financial assessment. 2

3 However, it will not count as capital if any of the following people are living there permanently before your move into a care home: your partner, your ex-partner (as long as you were a couple when you moved into the care home), your ex-partner if they are a lone parent, a family member aged 60 or over, your child who is aged under 18, or a family member who is incapacitated. 8 If your capital does not count, this is known as being disregarded. How does my capital affect how much I have to pay? If the local authority works out you have capital more than 23,250 you will have to pay for all of your residential care accommodation. If they run the service where you will be living, they will set a standard fee. If they don t they will charge you what the service charges them. 9 If your capital is between 14,250 and 23,250 the local authority will include it when deciding how much you will have to pay. For every 250 over 14,250 you own, they will assess you as being able to pay 1 a week towards the cost of your eligible care needs. This is called tariff income. 10 If you have assets which are slightly above the 23,250 upper limit, the local authority should think about how long this may last. They need to plan when your assets will be below that limit when working out your charges. 11 If you have capital below 14,250 it will not count. Depending on your financial assessment you may not have to make any payment towards your care home costs. What does notional capital mean? Notional capital is capital that may be included in the means test even though you do not have it. Notional capital may be capital which: you could have if you applied for it, such as a pension, is paid to someone else instead of you, or you have got rid of yourself, to reduce how much you have to pay ( deprivation of capital ). 12 Examples of deprivation of capital can include: giving money away as a gift going on expensive holidays living an extravagant lifestyle, if you did this to deliberately take advantage of the system. 13 3

4 What is income and how will the local authority assess this? Your income can include most benefits and personal pensions. Some of the benefits that are not included are: mobility component of disability living allowance mobility component of personal independence payment 14 child benefit child tax credit 15 This is just some of the common benefits that are not included. It is not a complete list. If the local authority treats your disability-related benefits as income, they should also consider if you have extra costs because of your disability. 16 For example, they may leave you with extra money to pay for a carer that you have arranged for yourself. Any income you get from being employed or self employed is not counted. 17 There are some other types of income that are not counted, such as child maintenance. 18 The same rules apply when assessing notional income as they do for assessing notional capital. 19 For example, if you are have a pension that you could be receiving but have chosen not to claim it, the local authority can treat you as if you are receiving it. What is the most I will have to pay? If you have to pay towards the cost of your residential accommodation, your income should not fall below the personal expenses allowance (PEA). The personal allowance is currently a week. 20 Sometimes, you may be left with more than the PEA. For example, if you have children to care for, or to pay for the upkeep of a property that has been disregarded. 21 Sue s story Sue lives in accommodation which costs the local authority 400 a week. She has a week in income and 19,000 savings. This means that the local authority regard her as having 20 tariff income. This makes her total income per week. Because the local authority has to leave Sue with at least to live on, she will have to pay 200 a week towards the cost of her residential care. The local authority would pay 200 which is the whole cost of her care. This will leave Sue with to spend on personal items every week, although she would be in effect using her savings to make up her personal allowance. What are top-up fees? The local authority has to give you services that meet your needs, no matter how much it costs. However, you or your family can pay a bit more 4

5 for your residential accommodation if you want somewhere more expensive. These are called top-up fees. The local authority can t put you somewhere and expect you to pay extra costs if you do not need it. Top up fees would be the difference between your personal budget and the cost of the care home you want to go to. This might mean your personal budget is 200 a week but you want to go to a care home that costs 300 a week. You could pay 100 a week to make up the difference. If you are doing this you have to sign a contract with the local authority. This contract will make sure you can afford the cost of top up fees. This contract will also decide how often you pay your top-up payments and who they are paid to. If you do not make your top up payments you may have to move to a different place that is within your personal budget. The local authority will review the agreement from time to time. This will make sure they know of any increases in charges and how they will divide this. What are Deferred Payment Agreements (DPA)? If you are moving in to a care home it may become your home for the rest of your life. If you own a property that is classed as capital the local authority will ask you to pay towards the cost of your care home. This might mean you have to sell your property to pay for your care. A DPA lets you to delay selling your home to pay for your care. You must meet three criteria in order to have a DPA. You must: have care needs that can only be met in a care home, have no assets worth 23,250 or more other than your home 22, and not be eligible for a capital disregard. There are some times where you could still be refused a DPA. For example, if the value of your home is low. If you do not meet all of the criteria for a DPA you can ask for one but the local authority does not have to give you one. For a DPA you would use your house as security, like a mortgage. You may need to sell it at a later date to pay the cost of the care. Your DPA can last until death. At this point the local authority would recover the cost of your care from the sale of your house. You can be charged interest on the DPA so the amount that you owe the local authority can increase as time goes on. 23 You should get independent financial advice before choosing a DPA. Top 5

6 3. The Mental Health Act and section 117 aftercare When you are discharged from certain sections of the Mental Health Act 1983 (MHA) you can get free after-care in the community. This is known as section 117 after-care. Residential care might be included as part of section 117 after-care. 24 But the legal position about getting free residential care and section 117 aftercare is complicated. The costs of the home should definitely be paid by the NHS and the local authority if: 25 The need for the residential care is linked to the reason why you were detained under The Mental Health Act, and You lack capacity to make a decision about where you live. You might have capacity to make decisions about where you live. If the NHS and the local authority try to charge you for residential care you can: complain, or get legal advice. You can find more information about: Complaints, and Legal advice: how to get help from a solicitor at Or you can call our General Enquiries team on and ask them to send you a copy of our factsheets. Returning to residential care You might have lived in residential care to meet your mental health needs before you went into hospital. If you return to residential care after being in hospital it might be free of charge under section 117 after-care. Even if you paid for the residential care before you went into hospital. 26 If you are in a home under Deprivation of Liberty Safeguards (DOLS) You might have to go into a home under a DOLS order if you lack capacity. If you are entitled to section 117 after-care the home should be free of charge. You can find more information about DOLS orders in our Mental capacity and mental illness factsheet at Or call our General Enquiries team on and ask them to send you a copy of our factsheet. 6

7 Top up fees You might want to go into a home that is different to the ones that the local authority has chosen for you. But it might be more expensive. The local authority will assess your needs and decide how much it will cost to meet them. If the home you have chosen is more expensive than that amount then you will need to pay top up fees. This is to cover the difference. 27 Nursing care You might receive nursing care in the home. If you are entitled to section 117 after-care this will be free and paid for by the NHS. 28 Depending on your circumstances your nursing care might be paid for by the NHS under either: 29 Section 117 after-care, or NHS Continuing Healthcare. But either way the nursing care should be paid for by the NHS. So it will be free of charge. You can read more about NHS Continuing Healthcare at You can find more information about Section 117 after-care at Or call our General Enquiries team on and ask them to send you a copy of our factsheet. 4. What if I cannot afford the charges? If you feel you cannot afford the amount that the local authority is charging you, you should tell someone working at the local authority. You should talk to the person who did your assessment. You can ask for a review of your situation. If you do not pay the charges the local authority has asked you to pay, they may contact you asking you to explain why you have not paid. They may ask you to repay the money that is owed. 30 It is important to explain your situation to them so that you can discuss options for repayment. Top You can get more information about how to manage your finances in our How to Deal with Debt factsheet from Or call and ask for the information to be sent to you. 7

8 Top 5. How can I deal with problems about charges? You may have problems around the local authority charging you. You can deal with problems informally or formally. They should make sure you know how to appeal their decisions or complain if you want to. Informal options It is best to try and deal with the problem informally first. You can talk about your concerns with the professional who is in charge of your care plan. If you do not have a care plan you should contact the person who did the assessment. You can ask them to explain their decision or discuss your concerns. If you speak to someone keep a note of: who you spoke to, when you spoke to them, and what you discussed. If you are under the Care Programme Approach (CPA), discuss any problems with your care coordinator or key worker. Formal options Complaints If you want to complain you have to use the local authority s (LA) complaints procedure. You can find out more information about Complaints at Or contact and ask for the information to be sent to you. Legal action You should be able to deal with most problems informally or through the complaints procedure. However, if you feel that they are not following the law, you could get legal advice. You would need to speak to a community care solicitor. You may get advice and representation depending on your situation. You may be entitled to legal aid but there are rules around this. Civil Legal Advice will tell you if you qualify for legal aid. They can give you information about local solicitors who accept legal aid. You can contact them on You can search for a solicitor online at: You can find more information about Legal Advice at Or call and ask for the information to be sent to you. 8

9 The information in this factsheet is correct at the time of writing. You can find more information in the most recent version of the Care and Support Statutory Guidance October 2014 which is available via the website. Local Authorities also have a duty to provide information and advice. 1 S14(1) Care Act Care and Support Statutory Guidance October 2014, para 8.8. pg As note 2, para 8.34 pg As note 2, Annex B, para 6. pg As note 2, Annex B, para 12. pg As note 2, Annex B, para 33. pg As note 2, Annex B, para 45. pg As note 2, Annex B, para 34.(c), pg Reg 5 The Care and Support (Charging and Assessment of Resources) Regulations 2014 SI 2014/ As note 2,Annex B, para 27.pg As note 2, Annex B, para 25.pg As note 2, Annex B, para 29. pg As note 2, Annex E, para 9.(f) pg As note 2, Annex D para 13 pg As note 2, Annex C para 28 pg As note 2, Annex C para 37 pg As note 9, Reg 14(1) 18 As note 2, Annex C para 28(b) pg As note 2, Annex C, para 32pg As note 9, para 6, pg As note 2, Annex C para 44 pg As note 2, para 9.7 (b) pg As note 2, para 9.66 pg Manchester City Council Vs Stennett and others [2002] UKHL Afework v London Borough of Camden [2013] EWHC 1637 (Admin) MHLO 51 as referred to in Richard Jones. The Mental Health Act Manual 17 th edition. London: Sweet & Maxwell; Para , page Richard Jones. The Mental Health Act Manual 17 th edition. London: Sweet & Maxwell; Section, page Section 117A (2), The Mental Health Act 1983, Ch The Department of Health (2012) National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care /National-Framework-for-NHS-CHC-NHS-FNC-Nov-2012.pdf; Part 2 section 66.1, page The Department of Health (2012) National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care /National-Framework-for-NHS-CHC-NHS-FNC-Nov-2012.pdf; Part 2 section 66.1, page As note 2, Annex C para 15(c) p 427 9

10 Rethink Mental Illness 2014 Last updated February 2016 Next update May 2018 Version number 10.1 This factsheet is available in large print. Last updated 01/10/2010 Last updated 01/10/2010